Filed: Jul. 26, 2011
Latest Update: Feb. 22, 2020
Summary: F.3d 1, 3 (1st Cir., 8, The closest Rodríguez comes to making such an assertion is in a, statement contained in his notice of appeal, filed shortly after, sentencing, in which he stated that his lawyer never explained to, him the nature of § 1028A, and that they could hit me with 0 to 15, years.
United States Court of Appeals
For the First Circuit
No. 10-1021
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS L. RODRÍGUEZ-MORALES A/K/A DANIEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Siler,* Circuit Judges.
José R. Olmo-Rodríguez, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.
July 26, 2011
*
Of the Sixth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. The appellant in this case
argues that he should be allowed to withdraw his guilty plea, and
that we should not enforce the waiver of appeal contained in his
plea agreement. Finding his claims unconvincing, we now affirm his
conviction and sentence.
I.
On March 30, 2009, an indictment was filed against
defendant-appellant, Jesús L. Rodríguez-Morales ("Rodríguez"),
charging him with two counts of unlawful possession with intent to
transfer five or more identification documents, two counts of
aggravated identity theft, and two counts of selling a social
security card. Specifically, Rodríguez was accused of selling a
total of eighty-six genuine social security cards and birth
certificates to undercover agents during two separate incidents in
August 2008.
On July 22, 2009, Rodríguez changed his plea to guilty on
one count of aggravated identity theft, based on an agreement
whereby the prosecution agreed to file a motion to dismiss the
remaining counts of the indictment. The plea agreement stated that
the guidelines sentence was the two-year term of imprisonment
required by the statute, 18 U.S.C. § 1028A. The plea agreement
contained a waiver-of-appeal provision which stated that if the
court accepted the plea agreement and sentenced him according to
its "terms, conditions, and recommendations," then he would
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"waive[] and surrender[] his right to appeal the judgment and
sentence in this case."
Rodríguez subsequently filed four pro se motions raising
various contentions regarding, inter alia, his attorney's
performance, computation of the applicable guidelines range, and
his lack of awareness of the consequences of pleading guilty to
aggravated identity theft. The district court construed the first
two filings as motions to withdraw his guilty plea, and denied
them. The district court responded to the last two filings by
explaining, via line order, that any issues would be discussed at
the upcoming sentencing hearing.
A sentencing hearing was held on December 1, 2009. At
sentencing, the prosecutor stated that "[h]ad this case gone to
trial . . . [Rodríguez] was looking at a statutory maximum of 44
years and a guideline sentence minimum of 107 months with a
guideline sentence maximum of 131 months." The court, as well as
defense counsel, immediately concurred in the prosecutor's
statement. Rodríguez subsequently addressed the court, and claimed
that he should not have been charged with aggravated identity
theft, as he had not sought to steal anyone's identity. The court
responded by clarifying that the statute in question (18 U.S.C. §
1028A) did not require that a defendant seek to assume another's
identity, but required only that "you transfer a means of
identification of another person," which, the court pointed out,
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Rodríguez had just conceded he did. No one, the court went on to
note, was accusing Rodríguez of assuming someone else's identity;
rather, he was accused of, and had pleaded guilty to, "using the
documents that belonged to another person -- or selling them to
another person for $2,000." The court then sentenced Rodríguez to
two years' imprisonment, followed by a one-year term of supervised
release. Rodríguez filed a notice of appeal the same day.1
II.
A.
The parties dispute the applicable standard of review.
The government argues it should be for abuse of discretion, whereas
Rodríguez argues it should be de novo. As noted above, the
district court construed two of Rodríguez's pro se filings, entered
after the change-of-plea hearing but prior to sentencing, as
motions to withdraw the guilty plea, and denied them as such.
Generally speaking, appeals of a district court's decision to deny
1
At oral argument defense counsel indicated that he had been
unable to reach his client for some time, and was not sure whether
he wished to further pursue this appeal. On March 8, 2011, we
requested that the parties locate the defendant and seek
clarification from him on this matter. On March 21, the U.S.
Attorney's office informed us that Rodríguez had been removed by
Immigration and Customs Enforcement to the Dominican Republic on
March 10, and that his present whereabouts are unknown. Defense
counsel was similarly unable to locate Rodríguez. In the absence
of a contrary indication by Rodríguez, we now resolve the merits of
the appeal.
-4-
a motion to withdraw is reviewed for abuse of discretion.2
See United States v. Rivera-Gonzalez, 626 F.3d 639, 643 (1st Cir.
2010) (reviewing claim that a guilty plea was entered without an
adequate understanding of its consequences for abuse of
discretion); United States v. McMullin,
568 F.3d 1, 9 (1st Cir.
2009); United States v. Castro-Gómez,
233 F.3d 684, 686 (1st Cir.
2000); United States v. Santiago,
229 F.3d 313, 316 (1st Cir. 2000)
(noting, with respect to a claim that a guilty plea was not knowing
and intelligent under Federal Rules of Criminal Procedure Rule 11,
that review was for abuse of discretion).
However, as we have previously noted, other standards
apply to certain sub-issues related to denials of motions to
withdraw. "Abstract questions of law are reviewed de novo,
findings of raw fact are tested for clear error, and law
application and balancing judgments are usually reviewed for
reasonableness." United States v. Padilla-Galarza, 351 F.3d 594,
597 n.3 (1st Cir. 2003). Rodríguez argues that whether his plea
was knowingly, intelligently and/or voluntarily tendered is a
question of law subject to de novo review. See United States v.
Ward,
518 F.3d 75, 80 (1st Cir. 2008) (citing Marshall v.
Lonberger,
459 U.S. 422, 431 (1983)); Wellman v. Maine,
962 F.2d
70, 72 (1st Cir. 1992); see also Sotirion v. United States, 617
2
Rodríguez does not challenge the district court's construal of
two of the pro se motions as motions to withdraw his guilty plea.
-5-
F.3d 27, 34 n.6 (1st Cir. 2010) (citing United States v. Goodson,
544 F.3d 529, 539 n.9 (3d Cir. 2008)) (noting, in the closely
related context of a challenge to a waiver of appeal in a plea
agreement, that a challenge premised on "the validity of the waiver
itself, not the Rule 11 colloquy," would be subject to de novo
review).
We need not resolve this issue, as Rodríguez's claim
fails under any of the applicable standards.
B.
The gist of Rodríguez's argument is that the prosecutor
"drastically" overstated what his sentencing exposure would have
been had he stood trial and been convicted on all counts.
Appellant claims that had he stood trial and been convicted of all
counts, he was looking at a guidelines range of twenty-four to
thirty months. He argues that the prosecutor's inflated estimate
of 107 to 131 months, agreed to by the court and by defense
counsel, induced him to agree to the government's proffer. The
proffer recommended a two-year term of imprisonment, which is what
he ultimately received, once he decided to accept the government's
terms and plead guilty. Rodríguez now claims that there was a
strong probability that, had he known the true extent of his
sentencing exposure, he would have rejected the government's
proffer. As it is, he wound up accepting the government's proffer,
and waiving many of his rights, in return for little or no discount
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from what he would have received had he gone to trial and been
convicted on all counts.
The government appears to concede that the prosecutor
overstated the defendant's potential exposure during the sentencing
hearing. However, the government disputes that this overstatement
rendered Rodríguez's plea involuntary or unintelligent, and argues
that we should enforce the waiver-of-appeal provision of the plea
bargain. The government also contests Rodríguez's calculation of
twenty-four to thirty months as the correct guidelines range for
conviction on all counts. While the government does not provide a
specific range, it notes that his potential exposure on counts
three and four alone was forty-eight months. Counts three and four
alleged violations of § 1028A(a)(1), and this statute specifies
that "no term of imprisonment imposed under this section shall run
concurrently with any other term of imprisonment." 18 U.S.C. §
1028A(b)(2). Therefore, sentences based on any of the other counts
would have been imposed on top of any sentence for counts three and
four.3
3
Rodríguez points out that a sentencing court may, in its
discretion, impose concurrent terms of imprisonment for multiple
violations of § 1028A. He speculates that because he was a first-
time offender, and because there are more egregious ways of
violating the statute, the sentencing court would have exercised
its discretion to impose concurrent rather than consecutive
sentences for counts three and four. For this reason, Rodríguez
claims that any sentence based on the other counts would have been
applied on top of a two-year, rather than (as the government
suggests) a four-year baseline, assuming convictions on counts
three and four.
-7-
The Federal Rules of Criminal Procedure permit a
defendant to withdraw a guilty plea after it has been tendered, but
prior to sentencing, for a "fair and just reason." Fed. R. Crim.
P. 11(d)(2)(b). The relevant factors in considering whether a
defendant has presented such a reason are "whether the plea was
voluntary, intelligent, knowing and complied with Rule 11; the
force of the reasons offered by the defendant; whether there is a
serious claim of actual innocence; the timing of the motion; and
any countervailing prejudice to the government if the defendant is
allowed to withdraw his plea." Padilla-Galarza, 351 F.3d at 597;
see also
Rivera-Gonzalez, 626 F.3d at 643.
The validity of a waiver-of-appeal provision in a plea
bargain is reviewed under the three-part test set forth in United
States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001). The Teeter
test asks whether "(1) the written plea agreement clearly
delineates the scope of the waiver; (2) the district court inquired
specifically at the plea hearing about any waiver of appellate
rights; and (3) the denial of the right to appeal would not
constitute a miscarriage of justice." United States v. Edelen,
539
F.3d 83, 85 (1st Cir. 2008); see also United States v. Isom,
580
F.3d 43, 50 (1st Cir. 2009).
Although the standard for reviewing a denial of a motion
to withdraw a guilty plea differs from the standard for reviewing
the validity of a waiver-of-appeal provision, Rodríguez makes the
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same argument under these two standards. He argues that the
prosecutor's misestimation of his probable guidelines range post-
trial rendered his plea involuntary, unknowing, and unintelligent.
Rodríguez argues that this both establishes a "fair and just"
reason to allow withdrawal of his guilty plea, and establishes that
there has been a miscarriage of justice under Teeter such that this
appeal must be allowed.4 In addressing this argument, we need not
assess the relationship between the standards governing waiver of
appeal and withdrawal of a plea. It is clear that there has been
no miscarriage of justice within the meaning of our case law
governing waivers of appeal under Teeter, and that disposes of this
appeal.
As the appellant rightly notes, the Supreme Court has
recognized that a guilty plea must be not just voluntary, but
knowing and intelligent as well, and that a defendant's "awareness
of the relevant circumstances and likely consequences" of his plea
bears on whether a guilty plea is "knowing" or "intelligent."
Brady v. United States, 397 U.S. 742, 748 (1970). The Supreme
Court has also explained that "[t]he standard was and remains
whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant."
North Carolina v. Alford,
400 U.S. 25, 31 (1970). More recently,
4
The appellant does not contest the other elements of the Teeter
test, i.e., the scope of the waiver or the Rule 11 colloquy. He
limits his contention to Teeter's miscarriage of justice prong.
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we have stated that "the accused must have understood the charges
against him and the spectrum of possible penalties to which an
admission of guilt will expose him." United States v. Jimenez, 512
F.3d 1, 3 (1st Cir. 2007).
None of this helps the appellant. The central hurdle
Rodríguez faces on appeal is that the prosecutor's statement to
which he draws our attention occurred at sentencing, i.e., months
after he had already decided to plead guilty. Rodríguez was
sentenced on December 1, 2009, but the change-of-plea hearing took
place approximately four months earlier, on July 22 of that year.
Therefore, even though he is surely correct that "erroneous
information" which "dramatically alter[s] the sentencing stakes for
the defendant" may bear on whether someone who has pleaded guilty
will be allowed to subsequently withdraw his plea, United States v.
Rivera-Maldonado, 560 F.3d 16, 21 (1st Cir. 2009), we do not see
how the misstatement identified by the appellant -- no matter how
egregious it may or may not have been -- could have affected his
decision to accept the government's proffer.5
During the plea hearing, the district court ensured that
Rodríguez understood what he was being charged with and the
consequences of a guilty plea, and that he had discussed his
options with his attorney. He admitted to committing the charged
5
Rodríguez has not alleged that his decision to plead guilty was
affected by any purported misstatement by the prosecution prior to
sentencing.
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crimes, and stated that he understood the penalties he might
receive.6 Rodríguez does not claim, and the record does not
indicate, that the prosecutor advised him that the applicable
guidelines range was 107 to 131 months prior to or during the
change-of-plea hearing.
The pro se motions filed by Rodríguez after the change-
of-plea hearing do not undermine this conclusion. In those
motions, Rodríguez insisted that aggravated identity theft under
§ 1028A was not meant to apply to someone in his situation, and
that he should have been charged with a lesser offense, with
reduced sentencing exposure. Nothing in these motions suggests
that his decision to plead guilty was obscured by misinformation as
to the sentence he might receive after trial. In his pro se filing
of October 13, 2009, Rodríguez complains that the government's
offer of twenty-four months was too long, but that he was informed
by his attorney that if he did not accept the plea, the
prosecutor's office could increase the sentence.7 Rodríguez was
6
This is not to say that there were no misstatements at the
change-of-plea hearing. During this hearing, the prosecutor stated
that the statutory penalty for Rodríguez's guilty plea under
§ 1028A was between two and fifteen years. As the government now
concedes, § 1028A provides a fixed term of two years for all non-
terrorism related offenses. However, Rodríguez does not argue that
his decision to accept the plea bargain was affected by this
misstatement, and we correspondingly deem any argument to that
effect waived.
7
It is not clear whether Rodríguez, or his attorney, is referring
to the possibility of a harsher outcome after trial, or to the
possibility that the proffer might be replaced with a less
-11-
not misinformed: even if the parties disagree as to how much more,
it is undisputed that the charges Rodríguez faced did in fact
expose him to over twenty-four months' imprisonment. Rodríguez
complained in other pro se filings that his lawyer recommended that
he sign the plea agreement, despite the fact that the crime charged
was, in Rodríguez's view, inapposite to his case. At no point in
these motions did Rodríguez assert that his decision to accept the
government proffer and plead guilty was influenced by a government-
induced misunderstanding of the sentence he could receive after
trial.8
We conclude that, because the prosecutor's statement was
made months after the appellant decided to plead guilty, the
prosecutor's overestimate of the applicable guidelines range did
not render Rodríguez's decision to plead guilty unknowing,
unintelligent or involuntary. In light of this conclusion, the
dispute between the parties as to what the precise guidelines range
would have been, had appellant proceeded to trial and been
convicted on all counts, is moot.
favorable one if he balked.
8
The closest Rodríguez comes to making such an assertion is in a
statement contained in his notice of appeal, filed shortly after
sentencing, in which he stated that his lawyer never explained to
him the nature of § 1028A, and that "they could hit me with 0 to 15
years."
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III.
For the reasons given above, the district court did not
abuse its discretion in denying Rodríguez's motions to withdraw his
guilty plea. The same reasons lead us to believe that enforcing
the appellate waiver would not work a miscarriage of justice under
Teeter. We affirm Rodriguez's conviction and sentence, and dismiss
the appeal.
So ordered.
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